Authors

Tomás Carbonell

Peter Zalzal

Streamlined State and Federal

Planning Approaches Under the Clean 

Power Plan

Securing Flexible, Cost-Effective Carbon Pollution 

Reduction through Well-Established Legal Authorities 

for Emissions Management
2

Abstract 

Later this summer, EPA will finalize the nation’s first limits on carbon pollution for 

existing fossil fuel-fired power plants - which are responsible for almost 40% of the 

nation’s total carbon pollution emissions, and are leading industrial sources of other 

pollutants that threaten public health. In this white paper, we examine how (1) the Clean 

Power Plan can be implemented by states and EPA using traditional regulatory 

approaches that apply to individual regulated power plants and that are consistent with 

existing law, while preserving compliance flexibility to ensure the cost-effectiveness of 

the program and protect electric reliability; 2) State and federal plans can facilitate 

interstate trading and cooperation by incorporating basic “common elements” that 

ensure the regulatory frameworks in various states are mutually compatible and 

preserve the environmental integrity of the Clean Power Plan; 3) these frameworks can 

be designed to secure enforceable emissions reductions and complement other state 

policies that mitigate carbon emissions, including incentives for clean energy and 

additional measures identified in a recently issued state toolkit that are not part of EPA’s 

building blocks, without requiring that those policies be incorporated into the state 

section 111(d) plan; and 4) in the context of the federal plan, there are clear advantages 

to a mass-based emissions trading framework that incorporates the common elements 

described in the paper, and contains discrete elements that can be customized at the 

option of the state.
3

Overview

EPA’s proposed Clean Power Plan would establish the nation’s first limits on carbon pollution 

from the power sector, reducing emission from the nation’s largest source of climatedestabilizing pollution to approximately 30% below 2005 levels by 2030. Acting under longstanding Clean Air Act authority, EPA has proposed carbon pollution goals that reflect the 

generating portfolio and emission reduction opportunities within each state. Moreover, EPA has 

provided extensive flexibility to the states to devise customized plans to achieve the required 

emission reductions over the ten-year period from 2020 to 2030—allowing each state to decide 

upon the most feasible and cost-effective approach for mitigating carbon pollution, and 

providing states with substantial discretion as to how emission reductions are achieved across 

facilities and over time.

The state-driven flexibility of the Clean Power Plan has important benefits, providing an 

opportunity for states to develop plans that strongly reflect state priorities. It also presents 

tremendous opportunities for states to choose to structure complementary policies to assist 

power companies in meeting carbon pollution goals, achieve needed reductions in additional 

health-harming air pollutants, and maximize job creation and economic benefits associated with 

modern clean energy infrastructure. The extent to which states realize these opportunities 

depends greatly on choices made by the states regarding the design of state plans, as well as 

guidance and other tools provided by EPA to facilitate the development of state plans. 

This white paper describes how the Clean Power Plan is, at its core, a traditional Clean Air Act 

emissions-reduction requirement. As such, the Clean Power Plan can be implemented by states 

through a straightforward, flexible, cost-effective approach that exclusively regulates power 

plants and draws upon well-established regulatory tools and existing legal frameworks. Such an 

approach can be designed to recognize the clean air benefits of renewable energy, energy 

efficiency, and other clean energy measures that can reduce emissions from regulated power 

plants at low cost, without requiring that states incorporate those specific policy measures into 

state plans. Moreover, states choosing such a program should also be able to harness the 

benefits of interstate trading by incorporating basic “common elements” that would enable 

trading among mutually compatible state plans. This would avoid the need for an initial, formal 

process of developing joint state plan submissions to EPA, though not preclude such formal 

arrangements for states choosing to pursue them at a later time. 

EPA has also committed to propose a model federal plan in the Summer of 2015, and this paper 

describes how such a plan can build from these same traditional air quality planning and 

management tools. Among other things, this paper suggests that the federal plan adopt a 

regulatory approach based on a mass-based emissions trading system incorporated into the 

operating permits of individual power plants; describes how the federal plan, like state plans, 

can be designed around “common elements” that allow for trading with entities in states using 

compatible plans; outlines ways in which EPA can allocate compliance instruments to support 

electric reliability and enhance the environmental integrity of the Clean Power Plan; 

recommends that that the federal plan provide for the participation of new power plants; and 

describes the legal basis for all of these design elements.
4

State Plan Design Considerations 

The flexible architecture of the Clean Power Plan provides opportunities for states to 

adopt and implement section 111(d) plans using existing state authority, applying 

requirements directly to sources through permit-based limits and leveraging traditional 

emissions management programs and compliance flexibilities. A plan that takes this 

traditional, emissions management-based approach will achieve required emission 

reductions using a simple, legally-durable, and flexible structure that can be adopted in 

a timely manner. 

Along with substantial reductions in carbon pollution, EPA estimates that the proposed Clean 

Power Plan will result in a more than twenty-five percent decrease in the pollutants that lead to 

soot and smog. Even so, there is a risk that state plans—including the flexibilities we describe 

more fully below—could be carried out in a way that increases emissions of these harmful 

pollutants in certain communities located in close proximity to electric generating units. We 

have a shared stake in ensuring that state plans are administered in a way that delivers 

important public health protections for all Americans, especially environmental justice 

communities that bear a disproportionate share of ambient air pollution burdens. Indeed, 

African-American and Latino communities have the highest rates of asthma and other 

respiratory diseases in this country due to stationary and mobile source pollution. It is likewise 

critical that state plans be designed to maximize benefits for all Americans, especially our lowincome populations. 

State plans can be designed to achieve these critical outcomes, and, to do so, it is essential that 

states ensure these community voices are an integral part of the planning process. The state 

planning process creates an opportunity for collaboration to ensure that states and stakeholders 

are thinking about compliance with carbon emission limits through a multipollutant lens.1 And 

states should commit to transparently tracking emissions of these harmful pollutants in a way 

that enables communities that have raised those concerns to ensure that they are being 

addressed. Moreover, as we describe more fully below, energy efficiency and demand side 

management programs can be an important part of the comprehensive way a state tackles its 

emission reduction goals, and it is essential that states and power companies deploying these 

programs do so in a way that is designed to benefit all Americans. Indeed, in a wide variety of 

states, these programs have been designed and deployed in a way that reduces pollution and 

drives down costs for low income Americans.2

 

1 This will be particularly important in the context of state planning to achieve the revised ambient air quality 

standards for particulate and ground-level ozone ( the main component of smog), as coal-fired power plants are large 

sources of carbon pollution and of SO2 and NOx, which are key ingredients of particulate pollution and smog.

2 See Paul Hibbard, Andrea Okie & Susan Tierney, EPA’s Clean Power Plan: States’ Tools for Reducing Costs and 

Increasing Benefits to Consumers 34 (July 2014) (describing ways in which energy efficiency programs have been 

designed to protect and benefit low-income consumers); Regional Greenhouse Gas Initiative, Regional Investment of 

RGGI CO2 Allowance Proceeds 9, 14 (Feb. 2014) (finding that energy efficiency and ratepayer assistance programs 

funded by RGGI have benefited over three million households, including over two million households that have 

received $122 million in ratepayer assistance as of 2014). Under the proposed Clean Power Plan, EPA projects that by 

investing in energy efficiency household and business energy bills can decrease by about 8% by 2030. EPA, 
5

With these important state planning considerations in mind, below we first describe in greater 

detail how states can deploy these traditional tools in developing 111(d) plans, identifying both 

key elements of a such plans and areas where EPA can provide additional guidance to further 

enable effective compliance and secure cost savings. We then examine several specific states, 

concluding that these states have ample existing legal authority to adopt an approach along 

these lines.

State Plan Architecture 

The proposed Clean Power Plan sets forth four general criteria and twelve specific components 

required for an approvable state plan3—all of which focus on ensuring enforceable, quantifiable, 

and verifiable emissions performance. Here, we specifically address the requirement that a state 

plan must identify emission standards and any other measures to satisfy the state’s goal, as well 

as implementing and enforcing measures available to demonstrate compliance. To satisfy these 

requirements, state plans should include two essential components: (1) an enforceable emission 

limit applicable to regulated power plants (referred to in the Clean Power Plan as “affected

electric generating units”) and reflected in the operating permits of those facilities; and (2) 

accompanying compliance flexibilities for that provide multiple ways for the affected EGU to 

meet the emission limit (possibly including averaging, trading, crediting, and early action 

programs) while assuring environmental performance, minimizing costs, and respecting the 

traditional roles of environmental and economic regulators. 

Pursuing this type of approach would involve state environmental agencies translating emission 

targets—either mass- or rate-based—into enforceable emission requirements that apply directly 

to affected electric generating units. State environmental agencies would likewise establish a 

compliance framework, potentially including some of the flexibilities we describe below, that 

would give owners and operators of those EGUs additional tools to assist in meeting their 

emission limits. Once environmental agencies establish the “rules of the road” through the state 

plan, power companies could then determine how to best meet required emissions limits for 

their facilities —making resource decisions that reflect their specific circumstances and 

opportunities, and the needs of their customers. With the certainty this state planning approach 

provides, companies can leverage flexibilities and make compliance decisions over time, 

working though their normal regulatory processes (whether state utility commissions or 

otherwise), and engaging their normal stakeholders, to help effectuate their preferred emission 

reduction strategy.

This process reflects how some of our nation’s most successful air quality programs have long 

been implemented for electric generating units. For example, following the enactment of the 

 

Regulatory Impact Analysis for the Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission 

Standards for Modified and Reconstructed Power Plants, 3-43 (June 2014). State deployment of demand side energy 

efficiency solutions to mitigate carbon pollution can provide multipollutant reductions while providing direct bill 

savings for communities suffering from high pollution levels.

3 79 Fed. Reg. at 34,909 (describing criteria, including enforceable measures, emissions performance, quantifiable 

and verifiable emissions performance, and reporting and corrective actions); Id. at 34,911 (describing 12 

components). 
6

Title IV SO2 emissions limits and allowance trading program of the Clean Air Act in 1990 to 

address acid rain, many state PUCs took action to approve compliance actions by regulated 

utilities, including the establishment of rules governing cost recovery for sulfur dioxide 

allowance transactions; integrated resource plans demonstrating capital investments or changes 

in generation and fuel mix that would be required to cost-effectively comply; and approval of 

investments in individual pollution control projects.4 Similarly, state PUCs undertook 

proceedings to ensure that regulated utilities comply with the Clean Air Interstate Rule and 

install pollution controls needed to meet National Ambient Air Quality Standards.5 And most 

recently, state PUCs around the country have been actively engaging with utilities to ensure 

smooth implementation of the Mercury and Air Toxics Standards, Cross State Air Pollution 

Rule, and other environmental requirements through long-term planning and ratemaking 

proceedings.6

Emission Limits Enforceable Against Regulated Sources.

A central question for state plans is whether the plan should require regulated power plants 

(known as “affected electric generating units”) to be subject to emission limits that ensure state 

goals are met, or instead, whether compliance obligations should be spread among power plants 

and other entities responsible for deploying measures like energy efficiency and renewable 

generation.7 Although the proposed Clean Power Plan leaves this choice up to the states, the 

most effective approach is to place emissions obligations directly on affected EGUs in the form 

of flexible, market-based programs for generators—similar to approaches used by EPA and the 

states to address other power sector pollutants such as sulfur dioxide and nitrogen oxides. This 

approach ensures environmental performance, provides clear and enforceable compliance 

obligations for emitting sources, and thoroughly comports with long-standing legal frameworks.

Moreover, this approach provides the states and affected sources with the latitude to augment 

 

4 See Ron Lile & Dallas Burtraw, State-Level Policies and Regulatory Guidance for Compliance in the Early Years of 

the SO2 Emission Allowance Trading Program 13-52 (May 1998) (summarizing orders and regulations issued by 

PUCs in response to the Clean Air Act Amendments of 1990, as well as some instances in which states passed new 

legislation to ensure timely and well-coordinated compliance. Examples include the establishment of new ratemaking 

rules requiring utilities to pass on to ratepayers certain profits from allowance transactions, or utilize those profits for 

demand-side management or other programs benefiting ratepayers; integrated resource planning processes requiring 

utilities to identify optimal combinations of shifts in generation, pollution control investments, fuel-switching, and 

other strategies to reduce sulfur dioxide; and approval of cost recovery for investments in flue gas desulfurization 

projects).

5 See M.J. Bradley & Associates, Public Utility Commission Study, EPA Contract No. EP-W-07-064 (Mar. 31, 2011) 

(providing detailed case studies of the Indiana Utility Regulatory Commission’s response to the Clean Air Interstate 

Rule and the Clean Air Mercury Rule; the Georgia Public Service Commission’s efforts to implement a “Multipollutant 

Rule” adopted by the state air quality regulators to comply with the Clean Air Interstate Rule and the ozone and 

particulate matter NAAQS; and the West Virginia Public Service Commission’s development of innovative financing 

mechanisms to ensure its regulated utilities complied with CAIR and CAMR). 

6 See Matthew Bandyk, State regulators approve Minnesota Power plan for coal retrofit, retirements, SNL Sept.25, 

2013 (reporting on Minnesota PUC’s approval of a plan by Minnesota Power to install emission controls needed to 

comply with MATS at a 585 MW power plant); Matthew Bandyk, We Energies coal-to-gas conversion gets approval 

from Wis. Regulators, SNL Feb. 3, 2014 (describing Wisconsin PUC’s approval of a Wisconsin Electric Power 

proposal to comply with MATS by converting an existing 256 MW coal-fired power plant to natural gas); Matthew 

Bandyk, Kentucky Power gets approval to convert coal unit at Big Sandy to gas, SNL Aug. 1, 2014 (describing 

Kentucky PUC’s approval of a plan to convert a 268 MW coal-fired power plant to gas, also for purposes of complying 

with MATS). 

7 79 Fed. Reg. at 34,901. EPA refers to the later approach as the portfolio approach. 
7

the state plan with complementary clean energy policies and programs that can lower the cost of 

compliance and maximize the economic benefits of reducing carbon pollution—without having 

to incorporate those programs as part of a state section 111(d) plan.

A state choosing to take this approach should adopt emission standards (either as emission rates 

or allowance submission requirements)8 that apply directly to sources, include those standards 

in the state’s plan, and enforce them through the state’s Title V permitting program9 or other 

state permitting program. Title V permits are legally enforceable documents that seek to assure 

compliance by consolidating all air pollution control requirements into a single, comprehensive 

“operating permit.”10 

An enforceable emission standard applicable to affected EGUs has a number of important 

benefits: 

 Environmental Integrity. A plan that applies mass- or rate-based standards directly 

to sources will ensure that states achieve the required level of emission performance.

 Simplicity. A traditional, emissions management-based approach is the simplest way 

for states to submit a compliant plan. States implementing these programs should not

need to incorporate their existing renewable portfolio standards or energy efficiency 

programs into their state plans, although states implementing rate-based programs will 

need to explain the process by which credits are assessed and awarded for these 

programs so as to ensure that the credits are quantifiable, verifiable, and enforceable.11

Similarly, companies can make their own decisions about how best to meet emission 

limits without including those specific decisions in the state plan. Because it ensures 

emission performance levels are met, such an approach also avoids the need for 

additional “corrective” measures contemplated under other planning approaches.12

 Enforceability and Efficiency. States have a long history of applying emission limits 

to sources through enforceable permits. Such an approach reflects states’ extensive 

experience with air quality planning and management and likewise leverages existing 

authority and permitting structures (for instance, all affected EGUs already have Title V 

permits addressing other pollutants). 

 

8 Below, we discuss specific states’ authority to adopt such emission limits. 

9 Emission limits could also be included in other state-based permits, see 35 P.S. 4006.1(b)(1) (Pennsylvania state 

permitting authority), but here, we focus on Title V because of its broad-based availability. 

10 In 2010, EPA engaged in a dialogue with states intended to determine whether states had authority to incorporate 

greenhouse gas emission limits into their Title V permitting programs. See 75 Fed. Reg. 31,514, 31,525 (June 3, 2010). 

While most states possessed this authority, EPA worked with the few states that did not in order to ensure those 

states obtained adequate authority to issue Title V permits incorporating greenhouse gases. See, e.g., 75 Fed. Reg. 

53,892 (Sept. 2, 2010).

11 Such evaluation, measurement and verification is not needed in the context of a mass-based program. To the extent 

renewable energy and energy efficiency reduce emissions from affected EGUs, those emission reductions will be 

automatically reflected in lower measured emissions from those facilities. 

12 79 Fed. Reg. at 34,912 (noting need to provide additional corrective measures if state plan is not achieving required 

emission reductions).
8

 Flexibility. As described more fully below, such a framework can fully incorporate costsaving compliance flexibilities such as averaging, crediting, and trading. These 

flexibilities have been successfully used in other air pollution programs to enable affected 

sources to determine the most cost-effective way to achieve emission reductions. 

Flexible Framework to Demonstrate Compliance

Along with these enforceable emission limits that apply directly to sources, state environmental 

agencies can likewise establish a compliance framework that would give owners and operators 

additional tools to assist in meeting these emission limits. EPA identifies several key flexibilities 

that can facilitate compliance while lowering costs, including averaging and trading of emissions 

across sources and crediting of emission reductions due to deployment of renewable generation 

and energy efficiency programs. These flexibilities can apply both within state borders and 

among states. We describe how states could integrate each of these features into a state plan in 

greater detail, below.

Averaging and Trading. By providing flexibility as to the timing and location of emission 

reductions, a state plan that allows for averaging or trading across emissions sources will result 

in the least-cost compliance option and best facilitate system reliability.13 Averaging is typically 

limited to include emissions units within a single plant, but could be expanded to include all 

units held by a common owner or operator. Permit trading allows owners and operators to take 

advantage of opportunities beyond their own portfolio, thus expanding the timing and location 

of emissions reductions considerably and bringing corresponding reductions in compliance 

costs. In the proposed rule, EPA properly concludes that states may incorporate averaging and 

trading into their 111(d) plans, citing the definitions of “standard of performance” in both 

sections 111(a)(1) and 302(l)14 and EPA’s past practice in 111(d) rulemakings of authorizing 

averaging and trading.15 In section 110, which section 111(d) requires EPA to build upon in 

establishing regulations governing state plans, Congress expressly required EPA to allow states 

to employ market-based measures to implement the national ambient air quality standards 

(NAAQS).

16 In addition, EPA has allowed states to adopt averaging and trading provisions in 

 

13 See Frantz T. Litz & Jennifer Macedonia, Choosing a Policy Pathway for State 111(d) Plans to Meet State Objectives 

18 (2015) (hereinafter “Great Plains White Paper”). 

14 Id. at 34,927. 

15 See Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units,

Final Rule,” 70 Fed Reg 28,606 (May 18, 2005) [also known as the Clean Air Mercury Rule, or “CAMR”], vacated on 

other grounds by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), cert denied sub nom. Util. Air Reg. Grp. v. New 

Jersey, 555 U.S. 1169 (2009); see also Standards of Performance for New Stationary Sources and Emission Guidelines 

for Existing Sources; Municipal Waste Combustors, 60 Fed. Reg. 65,387 (Dec. 19, 1995) (trading rules codified in 40 

CFR 60.33b(d)(1)-(2)).

16 Section 111(d) provides that EPA’s regulations governing state plans shall “establish a procedure similar to that 

provided by section [110],” and section 110, in turn, explicitly provides that enforceable control measures can include 

“marketable permits.” See 42 U.S.C. § 7410(a)(2)(A) (state implementation plants under CAA section 110 must 

include enforceable emissions limitations and other control measures, means, or techniques “(including economic 

incentives such as fees, marketable permits, and auctions of emissions rights)“). See also 42 U.S.C. § 7602(y) 

(definition of federal implementation plan including same language).
9

the context of many other Clean Air Act rulemakings.17 States can (and have) implemented these 

flexibilities at the level of individual sources, by providing in Title V operating permits that 

sources may demonstrate compliance with emission limits by averaging emissions with another 

designated source or by procuring approved compliance instruments. In addition, there is a long 

history of permit-based trading for NOx, SO2, and other pollutants resulting in substantial 

emission reductions at lower-than-projected costs.18

Renewables and Efficiency Crediting. Renewable energy (RE), energy efficiency (EE), 

and other measures that reduce emissions at affected facilities can also help to secure emission 

reductions and facilitate compliance,19 and a framework built around emission limits applicable 

directly to sources can allow sources to leverage these flexibilities in a proven, legally-durable 

fashion. Emissions reductions due to EE / RE measures (both through state-level programs as 

well as investments made by owners of electric generating units with compliance obligations) 

should be reflected in the mass of emissions measured at affected EGUs, so states that adopt a 

mass-based emissions will not need to separately integrate an EE / RE crediting program to 

promote these reductions. States may, of course, nonetheless wish to implement separate EE 

and RE programs to drive their deployment and obtain the broader health and economic 

benefits that these policies can promote. 20

States that adopt a rate-based approach, however, could include in their plans a means of 

directly accounting for emission reductions due to EE / RE programs.21 A plan along the lines we 

describe above could recognize these savings by incorporating an EE / RE crediting program

that would generate credits affected EGUs could use to comply with rate-based limits. EPA 

describes a number of ways that states could potentially calculate EE / RE savings for purposes 

of a crediting program and also discusses the need for state plans to include evaluation, 

measurement, and verification (EM&V) provisions.22 States can incorporate these standards or a 

process for establishing these standards into their state regulations for implementing the Clean 

Power Plan. Each source’s permits would then describe the kinds of RE/EE credits that would 

be recognized for compliance, and cross-reference the EM&V standards that must be applied to 

those credits.

Whether mass- or rate-based, such an approach can satisfy the needed state plan elements 

without requiring formal inclusion of state-level energy efficiency policies or renewable portfolio 

standards in a state’s 111(d) plan.23 States, in partnership with PUCs and other relevant entities, 

can continue to develop and implement these state-level policies in a manner that best reflects 

state priorities. In addition, this approach allows companies with compliance obligations to 

 

17 See, e.g., Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment 

Group Region for Purposes of Reducing Regional Transport of Ozone (“NOx SIP Call”), 63 Fed. Reg. 57,356 (Oct. 27, 

1998) (describing NOx budget trading program).

18 State Plan TSD at 34-35. 

19 79 Fed. Reg. at 34,919.

20 Id.; see also Great Plains White Paper, supra note 8 at 8.

21 79 Fed. Reg. at 34,919.

22 Id. 

23 EPA proposes that EE / RE credit generating mechanisms are “implementing measures” for purposes of a plan 

submission. Id. 
10

make resource planning decisions—including but not limited to company-level investments in 

renewables, energy efficiency, or demand response programs— that can help satisfy their 

compliance obligations and best reflect their specific circumstances, opportunities, and 

customer needs.

There are a host of other complementary policies that states and companies can additionally 

deploy to help secure cost-effective carbon pollution reductions. These measures include, among 

others, demand response programs and improved building efficiency codes.24 A recentlyreleased report by the National Association of Clean Air Agencies sets forth a detailed menu of 

options for reducing carbon pollution, including emerging technologies and policies that EPA 

did not consider in the building blocks used to establish state goals.25 As with renewables and 

efficiency investments, an emission-management state planning framework can fully recognize 

these investments, but would allow state and company decisions about how best to deploy them 

to be made in a traditional manner, as measures to help achieve the prescribed standards of 

performance but not requiring these measures to be incorporated into the state’s 111(d) 

emissions reduction plan.

“Common Elements.” The proposed Clean Power Plan also identifies opportunities to secure 

cost-effective emission reductions and enhance reliability by allowing interstate trading of 

compliance instruments (including mass-based allowances as well as EE / RE credits and 

credits generated by affected sources because of over compliance in a rate-based framework).

Although EPA’s proposal notes that states could implement such programs by submitting a joint 

multi-state implementation plan,26 past implementation of Clean Air Act programs shows that 

vibrant interstate markets for compliance instruments can be established without these 

elaborate processes.

Rather, states can facilitate interstate trading by adopting mutually compatible state plans 

designed around a few basic “common elements,” which would allow power companies 

operating in different states, and owners with compliance obligations spanning multiple 

jurisdictions, to trade either reduction credits or allowances.27 This would allow states and 

owners of EGUs to capture the economic efficiencies associated with trading and averaging 

across a wider pool, without requiring formal agreements between states. Moreover, this 

 

24 According to the Department of Energy, only one-quarter of states have adopted the most up-to-date codes for 

residential and commercial buildings. This is notable as these codes can reduce energy use in new residential and 

commercial buildings by 20 and 25 percent, respectively. Importantly, building codes have shown themselves to be 

cost effective, with codes adopted between 1992 and 2012 expected to save consumers more than $40 billion from 

buildings constructed during these 20 years alone. See U.S. Department of Energy (DOE), 2014, Building Energy 

Codes Program: “Status of State Energy Code Adoption,” July, U.S. DOE Office of Energy Efficiency and Renewable 

Energy, accessible at http://www.energycodes.gov/adoption/states. See also U.S. Department of Energy (DOE), 

Building Technologies Office, “Building Energy Codes Program,” DOE Office of Energy Efficiency & Renewable 

Energy, accessible at https://www.energycodes.gov/.

25 NACAA, Implementing the Clean Power Plan: A Menu of Option (May 21, 2015), available at 

http://www.4cleanair.org/sites/default/files/Documents/NACAA_Menu_of_Options_LR.pdf.

26 79 Fed. Reg. at 34,913 (describing approaches including both single and multiple plan submissions).

27 EPA could provide that states choosing to adopt these common elements in their state plans would be presumed to 

authorize exchange of compliance instruments with other states likewise incorporating the common elements 

approach. States incorporating these common elements could, however, opt out of interstate trading, limiting 

exchange of compliance instruments to in-state entities. 
11

approach would not preclude more formal agreements down the road, to the extent states later 

pursued them. A broad range of stakeholders and analyses have urged EPA to pursue such an 

approach.28

In providing guidance on common elements, EPA could draw from similar concepts reflected in 

multiple national rulemakings requiring states to reduce power sector emissions that affect air 

quality in downwind states. In the 1998 NOx SIP Call, for example, EPA identified key elements 

states must adopt (or incorporate by reference) in their state plans to ensure they could 

participate in an interstate trading program to reduce NOx emissions.29 Similarly, in the 2005 

Clean Air Interstate Rule (CAIR), EPA adopted a model state plan that reflected basic criteria for 

participation in interstate trading programs.30 Here, a common elements approach would define 

key parameters that must be included in state plans to allow sources to trade compliance 

instruments across state lines. Table 1 identifies key “common elements” in both the mass- and

rate-based context, though as the Table makes clear, “common elements” in a mass-based 

context are substantially more straightforward. Accordingly, states deploying a mass-based 

framework would need less guidance from EPA to enable interstate trading via a “common 

elements” approach.

TABLE 1

Common Elements in the Mass- and Rate-Based Plans31

Mass-Based Plan Rate-Based Plan

State Trading A state-wide emission trading 

program designed to achieve 

the mass-based state goal. This 

requires that the state issues 

allowances in a quantity not to 

exceed the state emissions 

budget.

A state-wide emission trading 

program designed to achieve the 

rate-based state goal.

Compliance 

Instruments

Compliance instruments 

representing the same quantity 

of CO2 emissions (i.e. 1 

allowance = 1 ton).

Compliance instruments 

representing the same units of 

measurement (for example, MWh 

of zero-carbon generation or tons 

 

28 See, e.g., Jonas Monast et al., Enhancing Compliance Flexibility Under the Clean Power Plan: A Common 

Elements Approach to Capturing Low-Cost Emissions Reductions (Nicholas Institute for Environmental Policy 

Solutions, Policy Brief NI PB 15-01, Mar. 2015).

29 63 Fed. Reg. 25,902 (discussing model budget trading rule). State plans could have variations (allocation 

methodology; early action crediting) but to allow for interstate trading, elements in model rule must be consistent. 

30 See 69 Fed. Reg. 32,684, 32,708-21 (June 10, 2004).

31 We assume trading would not occur across mass- and rate-based states.
12

of avoided emissions). 

Tracking and 

Implementation

A tracking system and 

appropriate safeguards to 

ensure that each allowance is 

only registered with one owner 

at a time and retired once. EPA 

should facilitate this by 

establishing model regulations 

governing trading and 

compliance for states pursuing 

the common elements 

approach. 

A tracking system and appropriate 

safeguards to ensure that each 

allowance is only registered with 

one owner at a time and retired 

once, as well as an approved 

EM&V plan to ensure the integrity 

of compliance instruments. EPA 

should facilitate this by 

establishing model regulations 

governing trading and compliance 

for states pursuing the common 

elements approach, and providing 

guidance on EM&V for RE / EE.

Provisions to 

assure 

environmental 

integrity of 

trading

No special provisions needed.

Trading among mass-based 

states does not affect overall 

emissions levels, because the 

total quantity of emissions from 

regulated sources is determined 

by the size of the cap.

EPA should evaluate whether 

states should be required to 

treat new units in a consistent 

fashion as part of guidance on 

common elements.32

Unrestricted trading among ratebased states could reduce the 

environmental benefits associated 

with the CPP by incentivizing 

increased generation in states with 

relatively weak state goals. EPA 

should only recognize trading 

through a common elements 

approach if states can demonstrate 

that the carbon emissions outcome 

of trading is not less stringent than 

implementing individual state 

goals separately without trading. 

This could entail policies for 

reducing such “leakage,” including 

requiring rate-based states to 

harmonize their rates in order to 

trade with each other; or requiring 

states to provide compensating 

emission reductions for increases 

in exports of generation to other 

 

32 Disparate treatment of new sources could inadvertently incentivize a shift in generation from existing to new 

sources, creating a potential for excess emissions. We discuss the importance of including new units in the federal 

plan and EPA’s legal authority to do so below. 
13

states.

To prevent double counting, power 

plants in states implementing ratebased programs should not be 

allowed to utilize renewable credits 

generated in mass-based states 

unless those states retire a 

corresponding number of CO2 

allowances.

EPA should evaluate whether 

states should be required to treat 

new units in a consistent fashion as 

part of guidance on common 

elements.33

Provisions to 

ensure the 

environmental 

integrity of 

compliance

Minimum sanctions, including 

monetary penalties and 

emissions mitigation, for 

violations of the program.

Minimum sanctions, including 

monetary penalties and emissions 

mitigation, for violations of the 

program.

Providing for a “common elements” approach in the context of permit-based state plans allows 

states to reap the benefits of interstate linkages without requiring states to engage in the 

development and submission of multi-state compliance plans, which will allow both states and 

power companies to be more nimble as they determine how to achieve the lowest cost emissions 

reductions. By facilitating multi-state compliance markets, this can afford operators greater 

options for compliance that will likely result in lower costs of compliance. In light of these 

benefits, we recommend that EPA expeditiously finalize guidance identifying minimum 

requirements for “common elements” in state permits, so states will have the certainty they need 

that their individual plans meet the threshold to be “interstate trading ready.”

Compliance Pool Tailored to Recognize Early Action and Support Reliability

While Protecting Environmental Integrity. A traditional, emissions management-based 

framework could also incorporate a mechanism to recognize early action and support reliability 

through a tailored compliance pool. EPA could consider developing a “compliance pool” that 

would be capped in size and consistent with the required carbon emissions reductions to ensure 

that the Clean Power Plan as a whole delivers rigorous environmental performance. The agency 

 

33 Allowing states implementing rate-based programs to choose whether or not to include new units in their programs 

will erode the emissions benefits of the program.
14

could allocate this pool of credits to states, which states could then use to recognize early action 

or provide to generators that have demonstrated a need for compliance instruments to operate 

for reliability purposes. EPA has taken a similar approach in the context of several other air 

quality programs,34 and commenters and analyses have suggested EPA take a similar approach 

in the Clean Power Plan.35

State Legal Authority

States have clear legal authority to adopt the approach we describe above, and, in many cases, 

have already used that authority to adopt similar flexible, air quality management programs. We 

examine existing legal authority in five states36 all of which have clear authority to adopt 

emissions limits applicable directly to electric generating units along with compliance 

flexibilities to implement the Clean Power Plan. Here, we highlight two states—Pennsylvania 

and Nevada—and analyze statutory provisions and regulatory programs, also pointing to 

analogs in other states we examined, that are strongly supportive of these states’ authority to 

adopt the approach we recommend. In addition to its simplicity, environmental integrity and 

durability, this approach relies on existing state legal authority and accordingly will help to 

ensure states timely adopt a compliant plan. 

Pennsylvania

Pennsylvania has clear legal authority to adopt greenhouse gas emission limits for electric 

generating units in the state. The Pennsylvania Air Pollution Control Act includes a definition of 

air pollution that is crafted broadly and encompasses greenhouse gases,37 and the Pennsylvania 

Department of Environmental Protection (“DEP”) has clear statutory authority to “implement 

provisions of the Clean Air Act in the Commonwealth,”38 which include the greenhouse gas 

emission limits found in the Clean Power Plan. Moreover, the state has authority to include 

these emission limits in permits DEP issues to sources, under both the state’s EPA-approved 

 

34 See, e.g., NOx SIP Call, 63 Fed. Reg. 57,428 (allowing a capped pool of 200,000 tons of NOx allowances across all 

participating states and distributing this pool among states based on the percentage of emission reductions the state 

was required to achieve under the program); see also Clean Air Interstate Rule, 70 Fed. Reg. 25,285 (same). In both 

the NOx SIP Call and CAIR, EPA provided that states could allocate these allowances among sources as a credit for 

early reductions or directly distribute them to sources based on demonstrated need). Id. Acting on this opportunity, 

Kentucky and Pennsylvania both promulgated regulations allocating their allowance pools to recognize early action 

and promote electric reliability. See 401 KAR 51:180 (Kentucky regulations establishing framework for allocating 

early reduction and emergency / reliability credits); 25 PA Code 145.43 (Pennsylvania regulations choosing to allocate 

all pool allowances to early reduction measures).

35 See, e.g., Advanced Energy Economy, Design Principles for a Rate-Based Federal Plan Under EPA’s Clean Power 

Plan 15 (May 2015). 

36 We have specifically examined legal authority in Colorado, Nevada, Minnesota, Montana, and Pennsylvania, though 

all states have authority to issue Title V permits including greenhouse gases. 

37 See 35 P.S. § 4003 (defining “air pollution” broadly to include “any form of contaminant, including . . . gases . . . 

inimical or which may be inimical to the public health, safety or welfare or which is or may be injurious to human, 

plant or animal life or to property . . . .”).

38 35 P.S. § 4004(1)
15

Title V permitting program39 and DEP’s own authority to issue permits under the state’s Air 

Pollution Control Act.40

The Pennsylvania Air Pollution Control Act likewise vests the DEP and Environmental Quality 

Board (“EQB”) with broad authority to establish regulatory programs with compliance 

flexibility, which encompasses averaging, crediting, and trading provisions along the lines

described above.41 Under the DEP’s general authority to implement provisions of the Clean Air 

Act, as noted above, the state can utilize the flexibilities expressly provided for in the Clean 

Power Plan.42 In addition, the Pennsylvania Act grants DEP authority to “do any and all other 

acts and things not inconsistent with any provisions of this act, which it may deem necessary or 

proper for the effective enforcement of this act and the rules or regulations promulgated under 

this act”43 and provides EQB with authority to “adopt rules and regulations for the prevention, 

control, reduction, and abatement of air pollution.”44

The DEP and EQB have previously interpreted these broad statutory grants of authority as 

authorizing adoption of air quality regulations which have included averaging, trading

(including trading across state lines), and crediting flexibilities similar to those we examine 

here.

 Averaging and Trading—Pennsylvania has adopted a NOx budget trading program, 

including provisions allowing for interstate trading, citing the EQB’s authority to adopt 

rules and regulations for the prevention, control, reduction and abatement of air 

pollution.45

 Crediting—Pennsylvania has also adopted various air quality crediting programs that are 

likewise founded on the EQB’s broad statutory authority. These include emission 

 

39 25 PA. Code 127 subch. F. (Pennsylvania Title V permitting regulations). PA DEP has previously applied permitbased GHG limits to sources through its federally-approved PSD and Title V permitting program. See Pennsylvania 

60-day Letter re: Implementation of the GHG Tailoring Rule (Aug. 4, 2010) (citing 35 P.S. § 4004 authority to 

implement CAA provisions as a basis for doing so).

40 See 35 P.S. § 4006.1(b)(1) (“No person shall operate any stationary air contamination source unless the department 

shall have issued to such person a permit . . . .”); see also 35 P.S. § 4006.1(k) (authorizing permit revisions at existing 

sources to incorporate new CAA requirements). Pennsylvania cited both of these provisions as the basis for its 

authority to establish permit-based emission limits for MSW landfills in Pennsylvania’s 111(d) landfill plan. PA 

Municipal Solid Waste (MSW) Landfills Plan Submittal, at 4 (June 30, 1997).

41 Statutes in the other states give similarly broad authority to air regulatory agencies. See e.g., Colo. Rev. Stat. § 25-7-

106(1) (giving air regulators “maximum flexibility in developing an effective air quality control program”); Minn. Stat. 

§ 116.07 subd. 4 (stating that “[w]ithout limitation” pollution control agency rules and regulations “may relate to 

sources or emissions of air contamination or air pollution, to the quality or composition of such emissions, or the 

quality of or composition of the ambient air or outdoor atmosphere or to any other matter relevant to the prevention, 

abatement, or control of air pollution”); Mont. Code Ann. §§ 75-2-102(2), 75-2-203 (giving air agency broad authority 

to regulate emissions from any source pursuant to the act’s policy of preventing injury to plant and animal life and 

property to the “greatest degree practicable”).

42 The proposed Clean Power Plan expressly provides for these flexibilities, concluding that emissions averaging and 

trading programs fall within the “standards of performance” that may be included in state plans, 79 Fed. Reg. 34,927, 

and that an EE / RE crediting program is an approvable implementing measure, id. at 34,919.

43 35 P.S. § 4004(27).

44 Id. § 4005(a)(1)

45 See 25 PA. Code § 123.101 et seq. (Pennsylvania regulations); see also 27 Pa. Bull. 5683 (Nov. 1, 1997) (Pennsylvania 

Bulletin noting adoption and the EQB’s reliance on authority in 35 P.S. § 4005(a)(1)).
16

reduction credits (“ERCs”) that sources subject to new source review requirements can 

generate due to over-control;46 as well as credits for renewable generation that can be 

used for compliance with NOx emission requirements for boilers, stationary combustion 

turbines, and stationary internal combustion engines;47 and renewables and demand 

side management crediting that were available to help satisfy requirements under the 

Clean Air Interstate Rule.48

Nevada

Nevada likewise has clear authority to apply emission limits to electric generating units.

Nevada’s statute defines “air contaminant” and “air pollutant” in broad terms that encompass 

greenhouse gases.49 Moreover, as with Pennsylvania, Nevada’s Department of Conservation and 

Natural Resources has authority to “take all action necessary or appropriate to secure to the 

state the benefits of the [Clean Air Act],”50 and in addition, has sufficient permitting authority to 

apply greenhouse gas limits directly to sources.51 

Nevada’s state environmental commission likewise has broad rulemaking authority that would 

allow it to adopt the compliance flexibilities we describe above, including the power to establish 

regulations “consistent with the general intent and purposes” of the state’s air quality act “to 

establish such requirements for the control of emissions as may be necessary to prevent, abate 

or control air pollution.”52 In addition, Nevada’s air quality statute provides explicit authority to 

adopt crediting and trading programs, including express authority to collect funds from the “sale 

of emission credits or allocations” and enabling authority for larger counties within the state to 

develop emission credits and trading programs.53 These broad and specific grants of authority 

authorize the state to develop a program that includes permit-based emission limits and allows 

for trading across sources (including interstate trading of compliance instruments) as well as

crediting of energy efficiency and renewable generation. Moreover, the Department of 

Conservation and Natural Resources can “cooperate and contract with other governmental 

agencies, including other states and the Federal Government”54 allowing for coordination 

between the air agency and the PUC in implementing any piece of this program. 

 

46 See 25 PA. Code § 127.206 (emission reduction credit regulations); see also 37 Pa. Bull. 2365 (May 19, 2007) (citing 

35 P.S. § 4005(a)(1) authority as basis for adoption).

47 See 25 PA. Code § 129.205 (regulations); 34 Pa. Bull. 6509 (Dec. 11, 2004) (citing 35 P.S. § 4005 authority).

48 See 25 PA. Code § 145.212 (“The Department will allocate CAIR NOx allowances to a renewable energy qualifying 

resource or demand side management energy efficiency qualifying resource in accordance with subsections (c) and 

(d) . . . .”).

49 See Nev. Rev. Stat. §§ 445B.110, 445B.115 (defining “air contaminant” as “any substance discharged into the 

atmosphere except water vapor and water droplets” and “air pollutant” as air contaminants that “may tend to,” among 

other things, “injure human health or welfare, animal or plant life or property”).

50 Id. § 445B.205

51 Nev. Admin. Code § 445B.287 (general Title V requirements).

52 Nev. Rev. Stat § 445B.210. 

53 Id. § 445B.508. 

54 Id. § 445B.230(3).
17

Under this existing statutory authority, Nevada has previously enacted regulations that 

incorporate key elements of the approach we describe above:

 Nevada has adopted regulations for trading under permit caps, as well as offsetting 

and netting for criteria pollutants in nonattainment areas.55

 Nevada regulations allow applicants for Title V permits to include “alternative 

operating scenarios,” a federally enforceable emissions cap, and a “provision 

regarding trading increases or decreases of emissions pursuant to a federally 

enforceable emissions cap.”56 For trading provisions, the sources must include 

“proposed replicable procedures and conditions of the operating permit that ensures 

that the trades of emissions are quantifiable and enforceable” and “any additional 

information the Director determines is necessary to process the application.”57

 Regulations in Clark County, Nevada, create a banking, trading, and emission 

reduction credit program.58

 Though never formally approved by EPA, Nevada submitted a state plan and adopted 

regulations to implement EPA’s Clean Air Mercury Rule.59 These included provisions 

for trading and—in certain circumstances—auctioning allowances.60

In addition to the above-described benefits of this approach, states’ ability to rely on existing 

legal authority will allow for timely adoption of compliant state plans. In past 111(d) rulemakings 

states have relied on many of the same existing authorities described here and have submitted 

plans within the timeframes set forth in EPA’s proposed rule.61

 

55 Id. §§ 445B.296, 445B.3405. 

55 Id. 

56 Id. § 445B.296. Other states have similar regulatory provisions. See, e.g., Minn R. 7007.0800 subp. 10 (Minnesota 

program allowing for trading of emissions increases and decreases within a single facility if requested by a permittee). 

57 Nev. Admin. Code § 445B.296(3). Nevada also administers a program allowing for averaging across units at a single 

facility. Id. § 445B.33627 (requirements for approval of plantwide applicability limitations). Other states regulations 

similarly include averaging provisions. See, e.g., Colo. Rev. Stat. § 25-7-1203 (allowing averaging across several 

emissions points in voluntary emissions limitations agreements); id. § 25-7-12020 (defining actual emissions as 

average emissions from group of stationary sources).

58 Clark County, Nevada Reg. § 12.7. Notably, Pennsylvania also allows for interstate trading of emission reduction 

credits under its New Source Review program. 25 Pa. Code § 127.208. 

59 Nevada DEP pointed to its broad grants of statutory authority as authorizing its plan submission and adoption of 

regulations. See NV CAMR Submittal at 5.

60 Id. at 10 (trading), 44 (auction provisions).

61 For instance, Minnesota submitted its 111(d) plan addressing municipal solid waste landfill emissions within 1 year 

of EPA’s promulgation of emission guidelines for those sources. See 71 Fed. Reg. 75,117 (Dec. 14, 2006). Nevada 

submitted its CAMR 111(d) plan within approximately 18 months. See 63 Fed. Reg. 40,049 (July 27, 1998). 
18

Federal Plan Design Considerations

Like other cooperative federalism programs established by the Clean Air Act, section 111(d) 

requires EPA to issue a federal plan in the event that a state does not submit a satisfactory plan 

that complies with federal emission guidelines. In the Summer of 2015, EPA intends to issue—

and take public comment on—a proposed model federal plan to implement the Clean Power 

Plan. This model federal plan will not only provide a predictable and consistent approach to 

achieving carbon pollution reductions in states that do not submit their own plans, but could 

also serve as a template to guide states in developing their own streamlined and cost-effective 

plans.

As described below, the federal plan offers an important opportunity to demonstrate that carbon 

pollution reductions from the power sector can be achieved through flexible, straightforward, 

market-based programs that are directly enforceable against regulated power plants and that 

appropriately incentivize low- and zero-carbon generation. Like state plans, a federal plan could 

also be designed around core “common elements”—parallel to those described in section II 

above—that would facilitate trading of compliance instruments between sources covered by the 

federal plan and entities in other states that are subject to compatible plans. In addition, the 

federal plan could be designed to reflect individual state priorities and preferences through a 

modular architecture that allows states to customize key elements, such as allocations of 

compliance instruments. Such a program would follow in the best tradition of national air 

pollution reduction programs under the Clean Air Act—borrowing in many key respects from 

successful federal and state plans that have reduced interstate transport of other major 

pollutants from the power sector. This section describes the key elements of such a federal plan.

Mass-Based Goal Coupled With a Streamlined Emissions Trading Approach. 

A threshold issue for the model federal plan is whether it should be designed to achieve a “ratebased” state goal (expressed in terms of the amount of carbon pollution per unit of generation 

emitted in the state) or a “mass-based” state goal (expressed in terms of the total amount of 

carbon pollution that may be emitted in the state over time). Because states implementing the 

Clean Power Plan will have the discretion to choose either form of state goal, EPA may likewise 

exercise this choice under its broad authority when promulgating a federal plan on behalf of a 

particular state. 62 Similarly, EPA may select from a range of regulatory approaches to 

implement the required emission reductions—so long as the federal plan, like state plans 

required by section 111(d), “establishes standards of performance for any existing source” within 

 

62 Although there is no case law interpreting the scope of EPA’s federal plan authority under section 111(d), the courts 

have consistently found that under section 110 – the provision after which 111(d) is modeled – EPA “stands in the 

shoes of the state” when adopting a federal plan and may deploy the same regulatory tools that Congress has 

authorized the states use in achieve federal clean air goals. See Central Ariz. Water Conservation Dist. v. EPA, 990 

F.2d 1531, 1541 (9th Cir. 1993) (When promulgating a federal plan, EPA “stands in the shoes of the defaulting state, 

and all of the rights and duties that would otherwise fall to the State accrue instead to EPA.”); South Terminal Corp. 

v. EPA, 504 F.2d 646, 668 (1st Cir. 1974) (“The statutory scheme would be unworkable were it read as giving to EPA, 

when promulgating an implementation plan for a state, less than those necessary measures allowed by Congress to a 

state to accomplish federal clean air goals. We do not adopt any such crippling interpretation.”). 
19

the state and “provides for the implementation and enforcement of such standards of 

performance.”63

Both mass- and rate-based state goals have their own advantages, and a model federal plan 

could be designed to achieve either. However, the combination of a mass-based state goal, 

implemented through a flexible emissions trading program that applies to regulated power 

plants, offers a suite of compelling features that would make it the preferred basis for a model 

federal plan. Under such an approach, EPA would establish an emission “budget” for power 

plants within a state, consistent with the state’s mass-based goal.64 The budget would apply 

beginning in 2020, and would gradually decline each year through 2030—ensuring that existing 

power plants within the state achieve both the interim and final standards established in the 

Clean Power Plan. In order to ensure that power plants achieve the budget in a flexible and costeffective way, a stock of tradable compliance instruments (allowances) —each representing a ton 

of CO2 emissions—would be allocated on a predetermined basis to owners of generation in the 

state.65 Each power plant in the state would be subject to a requirement to obtain allowances to 

cover each ton of carbon dioxide it emits, either using its own allocation or by acquiring 

allowances from other entities. 

This approach has a number of advantages. First, this approach would be straightforward for 

EPA to establish and administer – requiring principally that the agency track the ownership and 

submission of emission allowances by regulated entities. Unlike a rate-based system, there 

would be no need for EPA to specifically credit generation or avoided emissions resulting from 

renewable energy, energy efficiency, or other low or zero-carbon generation. As a result, a massbased system would avoid the need to create procedures for evaluation, monitoring and 

verification of such projects.

Second, this system would ensure that the state goal is met cost-effectively by providing the fleet 

of power plants with the flexibility to determine which facilities can most efficiently reduce 

carbon pollution (and on what schedule). This system would establish a market “price” on 

carbon emissions that would shift generation from carbon-intensive sources to low or zeroemitting sources, and would incentivize companies and other entities to invest in energy 

efficiency, renewable generation, and other projects to reduce carbon emissions from regulated 

facilities as necessary to minimize the cost of achieving the state’s budget.

Third, this system is fully compatible with other clean energy programs that the state might 

already have in place or might consider implementing – such as renewable portfolio standards 

or incentives for energy efficiency. Such programs would automatically help power companies 

achieve the state goal (by helping emissions stay within the “budget”) without any formal action 

to recognize or otherwise incorporate such programs in the federal plan.

 

63 42 U.S.C. § 7411(d)(1).

64 EPA has proposed a technique for converting a rate-based state goal into a mass-based equivalent.

65 The question of allocating allowances (and potentially other types of compliance instruments) would also arise in 

the context of state plans. Where a state is designing its own plan, such allocation questions are likely to be decided 

by state regulators as part of the process of crafting the plan.
20

In addition, this system has a long history of success in the power sector and other major 

industrial sectors, and is familiar to power companies in virtually every state. Examples of 

similar programs include:

 In the Cross-State Air Pollution Rule (CSAPR), which was upheld by the Supreme Court 

in 2014, EPA adopted state-wide emissions budgets for sulfur dioxide and nitrogen 

oxides from the power sector in twenty-eight states, and issued federal plans for each 

state establishing emissions trading programs to achieve those budgets;

 In the Clean Air Interstate Rule (2005) and NOx SIP Call (1998), EPA similarly adopted 

state-wide emissions budgets for these pollutants, and provided model rules and federal 

plans that encouraged the adoption of emissions trading programs in dozens of states.66

 Ten states—including California and the nine Northeastern states participating in the 

Regional Greenhouse Gas Initiative (RGGI) —are currently using similar emissions 

trading programs to achieve carbon dioxide reductions from the power sector.

 Congress established a similar emissions trading program for sulfur dioxide emissions 

from coal-fired power plants nationwide in the 1990 Clean Air Act Amendments, under 

Title IV of the Clean Air Act.

A final important advantage of this system is that it can incorporate unrestricted trading of 

compliance instruments between states without compromising the level of emission reductions 

achieved. This feature of mass-based programs results from the fact that the state-wide emission 

budget always determines the maximum level of emissions from covered sources. Trading 

among sources that are located in different states may shift emissions from one location to 

another, but total emissions from regulated sources will, by design, remain within the total 

budget of allowances that has been distributed to sources. As a result, there is no need for EPA 

to address interstate “leakage” concerns described in section II in the context of a federal plan 

that reflects a mass-based emission trading system.67 

 

66 In CAIR, EPA initially issued model rules as a way of encouraging states to adopt mutually compatible emission 

trading programs. The CAIR rule was followed one year later by a rule establishing a “backstop” federal plan, which 

was nearly identical to the CAIR model rule, for all states that did not submit state plans compliant with CAIR. See 

Air Pollution Control – Transport of Emissions of Nitrogen Oxides (NOx) and Sulfur Dioxide (SO2), 71 Fed. Reg. 

25,328, 25,330-331 (Apr. 28, 2006). The NOx SIP Call was similarly implemented by means of a model emissions 

trading rule that was voluntarily adopted by multiple states. See Finding of Significant Contribution and Rulemaking 

for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of 

Ozone, 63 Fed. Reg. 57,356, 57,366 (Oct. 27, 1998). 

67 However, as described more fully below, there is a potential for “leakage” to new power plants in mass-based states 

with plans that do not cover new sources – in addition to unintended emissions that might result from interstate 

trading in compliance instruments. For this reason, we recommend that the federal plan incorporate new sources (an 

option that EPA has proposed to allow for states with mass-based plans under the proposed CPP), and that EPA 

consider whether treatment of new units should be considered as part of a “common elements” framework for state 

and federal plans (see section II above). 
21

Compatibility with Other State Programs through Recognition of Common Elements

Various analyses, including EPA’s Regulatory Impact Analysis for the Clean Power Plan, have 

concluded that carbon pollution goals can be more cost-effectively achieved if states “pool” their 

emission reduction opportunities rather than achieve their goals on an individual state basis.68

Like federal plans issued under CSAPR as well as other programs identified above, a Clean 

Power Plan model federal plan based on emissions trading could be designed to allow power 

companies to trade with any power company in any state that is operating under the federal plan 

or a compatible state plan. This “plug and play” compatibility would allow states operating 

under the federal plan to secure the benefits of multistate coordination, without having to 

pursue potentially complex negotiations or formal agreements with other states.

Such an approach has direct precedents under the Clean Air Act. In the 2011 CSAPR, EPA 

promulgated federal plans for all twenty-eight states covered by the rule.69 Although established 

on a state-by-state basis, the federal plans were based on a common architecture that created 

mutually compatible emissions trading programs for each state. As a result, any power plant 

operating in a state covered by a CSAPR federal plan can trade allowances with any power plant 

in any other state covered by the federal plan.70 Moreover, CSAPR offered each state the option 

of modifying the trading program in certain respects, either by submitting an “abbreviated” state 

plan or a “full” state plan, while preserving their interlocking, “plug and play” compatibility.71

Thus, states in CSAPR could customize the allowance allocations to individual power plants, as 

well as certain other program features, while continuing to enjoy the benefits of a flexible 

multistate trading program.72

 

68 EPA’s Regulatory Impact Analysis concluded that a “regional” approach to compliance – under which states within 

each region combine their respective state targets and meet them on a regional basis — would have 17% lower 

compliance costs by 2030 relative to achieving compliance on an individual state by state basis. EPA, Regulatory 

Impact Analysis for the Proposed Carbon Pollution Guidelines for Existing Power Plants and Emission Standards for 

Modified and Reconstructed Power Plants ES-8, Table ES-4 (June 2014). A 2015 analysis by PJM, one of the nation’s 

largest regional grid operators, also concluded that a regional approach using mass-based goals and emissions trading 

would have substantially lower costs than a state-by-state approach. See PJM Interconnection Economic Analysis of 

the EPA Clean Power Plan Proposal at 82 (Mar. 2015). 

69 76 Fed. Reg. 48,208 (Aug. 8, 2011); see also 76 Fed. Reg. 80,760 (Dec. 27, 2011).

70 In order to comply with a decision of the DC Circuit and assure the attainment of air quality standards in localized 

areas of downwind states, EPA limited the amount of interstate trading in CSAPR through a set of “assurance 

provisions” that ensured no individual state would exceed its emission budget by more than a predetermined level. 

See 76 Fed. Reg. at 48,294-96; see also 79 Fed. Reg. 71,663 (Dec. 3, 2014) (revising deadlines for assurance 

provisions). Because carbon dioxide is a dispersed pollutant, there would not be a need for such provisions in the 

context of the Clean Power Plan. 

71 This feature was also included in the Clean Air Interstate Rule, adopted during the Bush Administration. See 

Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP 

Approvals, 76 Fed. Reg. 48,208, 48,321, 327-28 (Aug. 8, 2011) (describing abbreviated and full SIP submission 

options under CSAPR and CAIR).

72 The Regional Greenhouse Gas Initiative (RGGI), through which nine Northeastern states established an emissions 

trading program for carbon pollution from existing power plants in 2005, also demonstrates the potential for a 

system of mutually compatible federal and state plans based on common elements. Although RGGI was created 

pursuant to a formal memorandum of understanding among the member states, the program was implemented 

through a “model rule” that was individually promulgated by each state participating in the program. Similar to the 

CSAPR federal plan, the model rule sets forth basic elements that are needed to ensure the mutual compatibility and 

effectiveness of the emissions trading programs created under RGGI, including: common procedures for accounting 

for and tracking allowances; monitoring, reporting, and recordkeeping requirements; and common penalty provisions 
22

In order to protect the environmental integrity of the program and place power plants on a level 

playing field, CSAPR did establish certain uniform conditions that all trading programs have to 

meet73—analogous to the concept of common elements described in section II of this paper. For 

purposes of a mass-based federal plan under the Clean Power Plan, the common elements would 

mirror those described in section II (see Table 2).

Table 2

Common Elements for Federal Plan

Category Common Element

State Trading Creation of a state-wide mass-based program with 

emissions trading. Provisions ensuring that allowances 

are issued in a quantity not to exceed the state emissions 

budget.

Compliance 

Instruments

Compliance instruments representing a standard 

quantity of CO2 emissions (i.e. 1 allowance = 1 ton)

Tracking and 

Implementation

A compatible tracking system and appropriate 

safeguards to ensure that each allowance is only 

registered with one owner at a time and retired once. 

EPA should facilitate this by establishing model 

regulations governing trading and compliance for states 

pursuing the common elements approach. 

Provisions to assure 

environmental 

integrity of trading

No special provisions needed. Trading among massbased states does not affect overall emissions levels, 

because the total quantity of emissions from regulated 

sources is determined by the size of the cap.

As noted in section II, inclusion of new units should be 

evaluated by EPA as a common element for mass-based 

states. We recommend below that the federal plan 

 

for power plants that hold insufficient allowances to cover their emissions. See Regional Greenhouse Gas Initiative, 

Model Rule Part XX CO2 Budget Trading Program (2013), Supbart XX-2.1-2.6 (designation and authorities of 

authorized account representatives); Subpart XX-4.1; Subpart XX-6.1-6.4 (allowance tracking system); Subpart XX6.5 (penalties for excess emissions); Subpart XX-8 (monitoring and reporting requirements). 

73 See 76 Fed. Reg.at 48,333-343. These core features included provisions governing monitoring, reporting, and 

recordkeeping; creation of allowance accounts and identification of “designated representatives” who would be 

responsible for ensuring compliance with allowance surrender requirements; and common provisions governing 

liability for allowance shortfalls. 
23

provide for the inclusion of new units.

Provisions to ensure 

the environmental 

integrity of 

compliance

Minimum sanctions, including penalties and emissions 

mitigation, for violations of the program.

Allocation of Allowances to Support Reliability and Minimize Interstate Effects

EPA would have substantial discretion in determining how allowances should be allocated under 

a model federal plan, and could consider a number of options—including allocating allowances 

directly to existing power plants in proportion to their share of recent or historic electric output 

or based on their recent or historic carbon dioxide emissions. EPA may also consider setting 

aside a certain share of allowances for new fossil generating units, or to incentivize new energy 

efficiency and renewable energy projects that help the state achieve its emissions budget.

Alternatively, EPA could avoid the use of set-asides entirely, and treat new renewables and 

efficiency projects in the same way as existing fossil generation under an output-based 

allocation approach. EPA has considered similar allocation issues in the past, most recently in 

the CSAPR proceeding—in which EPA proposed and took comment on a number of allocation 

options, including some of those listed above.74 

From an environmental point of view, the emissions trading program should largely achieve the 

state goal regardless of which allocation method is reflected in the federal plan. However, since 

some states may choose to implement different types of programs, decisions about allocations 

could influence how generation is distributed among states operating under the federal plan and 

states operating under distinct state plans. In particular, some respected analysts have 

concluded that allocating allowances to generators based on electric output (via an output based 

allocation approach that “updates” over time as generation levels change) would help avoid 

unintended incentives to “shift” generation away from states with mass-based goals and towards 

states with rate-based goals – reinforcing the environmental integrity of the overall CPP.75

Similarly, reasonable “set-asides” of allowances or direct allocation to clean energy projects 

could help ensure that renewable energy, energy efficiency, and other measures are adequately 

incentivized. In light of the well-documented market barriers that get in the way of cost-saving 

efficiency measures, such measures have been shown to minimize costs. EPA should consider 

and take comment on a broad suite of allocation options in a proposed federal plan, including 

the options described above.

 

74 See CSAPR, 76 Fed. Reg. at 48,284-94. EPA ultimately decided to allocate allowances to existing power plants 

based on historic heat input, on the grounds that this methodology did not unduly advantage or penalize particular 

power plants based on their use of particular fuels or emission controls. Id. at 48,289. This judgment was not 

disturbed by the courts, but neither does this precedent require EPA to adhere to this methodology in future federal 

plans. 

75 Dallas Burtraw et al., Comments to the US Environmental Protection Agency on its Proposed Clean Power Plan 

20-21 (Dec. 2014).
24

There are also ways to design allowance allocations to reinforce the reliability of the electric 

system. In particular, allocations should be timed and structured such that a well-supplied 

market for compliance instruments is created as early as possible. This will ensure that 

allowances are available at a reasonable price to any power plant that needs them, including 

power plants that may need to operate at unexpected times for reliability purposes. In CSAPR, 

EPA provided a liquid market by ensuring that power plants received allocations for several 

years in advance76 – helping ensure that, on the whole, the market had an ample stock of 

allowances in circulation at all times to provide for orderly compliance and deal with unexpected 

and short-term needs for allowances. If EPA includes new units in the federal plan, it could also 

“set aside” a discrete number of allowances for such units to minimize discrepancies between 

allocations to new and existing units. 

Lastly, as noted above, EPA could consider creating a limited “pool” of compliance instruments 

that states would be able to allocate for purposes of recognizing early action and promoting 

electric reliability. If EPA were to adopt such an approach, it could specify the allocation of such 

instruments in the federal plan or request input from the state on how such a pool should be 

allocated.

Inclusion of New Units

Another important issue for EPA to consider in the design of the federal plan is whether new 

fossil fuel-fired power plants will be subject to the same emissions trading program as existing 

power plants. Although the proposed Clean Power Plan would not require state plans under 

section 111(d) to cover new power plants, some analysts have concluded that the program would 

produce more uniform market signals and more robust environmental and economic outcomes 

if new power plants were included in implementation policies under a mass-based program.77

EPA should provide for participation of new units in a model federal plan’s implementation 

mechanisms and would likely have the ability to do so under its broad remedial authority to 

craft federal plans under section 111(d). Including new units in the mass-based program will 

ensure that a) new sources in the state covered by the federal plan do not face unintended 

incentives to expand emissions relative to existing plants, and b) existing sources in the states 

achieve actual emission reductions commensurate with the state goals, instead of shifting their 

emissions to new power plants. Put differently, including new units in the federal plan is a 

protective measure to ensure that existing power plants achieve reductions that are consistent 

with the state goal and the “best system of emission reduction” that EPA has established for 

those plants. As such, including new units can be seen as a provision for “implementation and 

 

76 See, e.g., 40 C.F.R. § 97.421(a)-(3) (providing for recordation of allowance allocations for 2012 and 2013 by Nov. 7, 

2011; for 2014 and 2015 by July 1, 2013; for 2016 and 2017 by July 1, 2014; and for 2018 and 2019 by July 1, 2015).

77 See Bipartisan Policy Center, Insights from Modeling the Proposed Clean Power Plan, at 29 (noting that including 

new NGCC units can lower cost, reduce market distortions, and reduce impacts on existing generators); Evelyn 

Wright & Amit Kanudia, Evaluating Emissions Variation and Leakage Potential Across Clean Power Plan Compliance 

Designs: A Scenario Analysis in FACETS at vii (describing modeling results indicating that excluding new gas from a 

mass-based compliance plan would lead to higher emissions). 
25

enforcement” of the standards for existing sources – a required part of section 111(d) plans 

under the terms of the Act.78

EPA’s authority to take such action is supported by case law finding that, in the context of 

federal plans to implement the National Ambient Air Quality Standards, EPA “stands in the 

shoes of the state” and, in general, may exercise the same authority as a state in regulating 

stationary sources under the federal plan.79 The courts have also recognized that, like a state, 

EPA may go above and beyond the minimum requirements of the Clean Air Act under a federal 

plan. As the Tenth Circuit recently concluded in rejecting a challenge to a federal plan for a 

tribal area:

[W]e note there is no requirement that a gap-filling federal plan can be only as 

strict as necessary to meet national air standards. . . States, and presumably 

tribes, may surpass national air standards as long as their plans satisfy all of the 

minimal Clean Air Act requirements. See Union Elec. Co., 427 U.S. at 263-65, 96 

S.Ct. 2518 (holding that the EPA cannot disapprove a state plan solely because it 

imposes stricter limits than the national air standards or is economically or 

technologically infeasible). We have found no authority saying that we can 

prevent the agency to which we owe substantial deference from implementing the 

same type of superior plan.80

As noted above, the proposed CPP provides states with mass-based programs the option of 

including new sources in their emissions trading programs, and set forth a proposed 

methodology for calculating the state’s overall emission budget if it includes both new and 

existing sources. To the extent that the final CPP provides such a pathway for states to design 

mass-based federal plans that include new sources, this case law suggests that EPA may elect to 

make the same choice when exercising its remedial power to craft a federal plan “in the shoes of 

the state” – even if states are not required to account for emissions from new sources when 

designing their plans under section 111(d).

The inclusion of new sources in a federal plan under the CPP would also be consistent with past 

EPA rulemakings regulating interstate air pollution from the power sector, all of which covered 

new sources in order to protect air quality.81 Although these programs were developed under 

 

78 42 U.S.C. § 7411(d)(1)(B).

79 See Central Ariz. Water Conservation Dist. v. EPA, 990 F.2d at 1541 (When promulgating a federal plan, EPA 

“stands in the shoes of the defaulting state, and all of the rights and duties that would otherwise fall to the State 

accrue instead to EPA.”); South Terminal Corp. v. EPA, 504 F.2d 646, 668 (1st Cir. 1974) (“The statutory scheme 

would be unworkable were it read as giving to EPA, when promulgating an implementation plan for a state, less than 

those necessary measures allowed by Congress to a state to accomplish federal clean air goals. We do not adopt any 

such crippling interpretation.”); cf. Okla. Dep’t of Envtl. Quality v. EPA, 740 F.3d 185, 193 (D.C. Cir. 2014) (“Because 

the EPA may administer a federal program only "in the shoes of a tribe or the shoes of [a] state," it can exercise no 

more jurisdiction than could the tribe or state whose shoes it fills.”) (citation removed) (quoting Michigan v. EPA, 

268 F.3d 1075, 1085 (D.C. Cir. 2001)). 

80 See Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130 (10th Cir. 2009).

81 Under the NOx SIP Call, CAIR, and CSAPR, EPA established state-wide emission budgets for air pollution that 

applied equally to emissions from then-existing generating units as well as generating units that would be built in the 

future. Further, EPA included provisions in its model rule and federal plans that set aside a small percentage of 

allowances for new units on an annual basis, as well as distribution formulas for ensuring that such allowances were 
26

section 110 of the Clean Air Act and not section 111(d), the structure of these programs reflects 

the appropriateness and long history of reducing power sector emissions through emission 

trading programs that apply equally to new and existing units.

If EPA does not provide for the participation of new sources in the federal plan, we recommend 

that EPA make clear that the federal plan will be modified upon the next revision to the New 

Source Performance Standards (NSPS) to include all sources built prior to that time. In past 

rulemakings, EPA has provided that new sources are considered “existing” sources, and may be 

made subject to state and federal plans under section 111(d), once a NSPS that applies to those 

new sources is reviewed and revised.82 That same approach should apply equally in the context 

of the Clean Power Plan, and would help mitigate the incentives that might otherwise exist for 

power companies to build and operate new sources in order to avoid emission reduction 

requirements under section 111(d).

Options for Empowering the States and Fostering Partnership with EPA

Although EPA is required to issue a federal plan for any state that does not timely submit a 

satisfactory plan of its own, there are several ways in which EPA could design the federal plan to 

provide states with an important role in policy decisions and in implementation.

First, as it did in CSAPR, EPA could identify certain “modular” components of the federal plan 

that could be customized (at the option of the state) while maintaining the overall 

environmental integrity and cost-effectiveness of the plan. In CSAPR, EPA provided states with 

the option of submitting an “abbreviated” state plan that modified only the allowance allocation 

provisions of the federal plan. Among other things, states could opt to replace the heat inputbased allocation methodology in the federal plan with an auction of allowances; set-asides for 

renewable energy generators or other entities; or different formulas for allocating allowances 

among new and existing power plants.83 A federal plan implementing the CPP and designed 

 

allocated fairly among new units. See Finding of Significant Contribution and Rulemaking for Certain States in the 

Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone, 63 Fed. Reg. 

57,356, 57,408-409 (Oct. 27, 1998) (discussing how EPA’s procedure for establishing state emission budgets 

accounted for growth in generation and the construction of new generating resources); id. at 57,470-471 (describing 

set-aside provisions for new sources in EPA’s Model Rule); Rule to Reduce Interstate Transport of Fine Particulate 

Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call, 70 Fed. 

Reg. 25,162, 25,168 n 10 (May 12, 2005) (explaining that state-wide emission budgets apply to new source emissions 

as well as existing sources); Air Pollution Control – Transport of Emissions of Nitrogen Oxides (NOx) and Sulfur 

Dioxide (SO2), 71 Fed. Reg. 25,328, 25,356 (Apr. 28, 2006) (describing set-aside provisions for new sources in the 

federal plan implementing CAIR); CSAPR, 76 Fed. Reg. at 48,290 (describing set-aside provisions for new sources in 

the CSAPR FIP).

82 See Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: 

Hospital/Medical/Infectious Waste Incinerators, 74 Fed. Reg. 51,368, 51,375 (Oct. 6, 2009) (providing that “All 

HMIWI that complied with the NSPS as promulgated in 1997 are ‘existing’ sources” following the promulgation of 

amendments to the NSPS, and requiring those sources to comply with applicable emission guidelines to the extent 

they are more stringent than the NSPS); Standards of Performance for New Stationary Sources and Emission 

Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 80 Fed. Reg. 3,018, 3,023 

(Jan. 21, 2015) (clarifying that following February 2013 revisions to the NSPS, EPA intended to regulate sources 

covered by the prior 2000 NSPS as ‘‘existing’’ sources under the more stringent EG once these units were covered 

under an approved state plan or federal plan that implements the February 2013 CISWI final EG).

83 CSAPR, 76 Fed. Reg. at 48,326.
27

along the lines described above could, similarly, provide states with the option of auctioning the 

allowances or otherwise modifying the allocation methodology. 

In addition to allocations, other provisions of the federal plan could likely be adjusted by the 

state without altering its effectiveness in achieving the state goal. For example, EPA could 

consider allowing states to determine whether and to what extent interstate trading of 

compliance instruments is allowed. Such modifications would allow the state to retain control 

over important policy decisions, while ensuring that the required emission reductions are 

achieved.

Finally, EPA could consider delegating the implementation and enforcement of the federal plan 

to state environmental regulators, just as EPA has done with respect to past section 111(d) 

federal plans,84 as well as New Source Review permitting and administration of the Regional 

Haze program.85 Delegation of the implementation of the federal plan would preserve the state’s 

important role in carrying out and enforcing Clean Air Act programs, while conserving EPA’s 

limited administrative resources. 

Conclusion

This paper demonstrates that the Clean Power Plan can feasibly be implemented through 

traditional emissions management programs that are exclusively enforceable against regulated 

power plants. States and EPA have long deployed such traditional environmental regulatory 

tools to achieve flexible, cost-effective emission reductions in other pollutants generated by the 

power sector—as well as to appropriately incentivize RE, EE, and other activities that reduce the 

cost of compliance while yielding significant environmental and economic benefits. Moreover, 

past experience with the Clean Air Act has shown that, with appropriate EPA guidance, such 

programs can facilitate and leverage multistate trading and cooperation—without involving the 

states in complex or time-consuming joint state implementation plans.

Many of the same design considerations that inform the state planning process are also relevant 

to EPA’s development of a model federal plan. As shown above, such a federal plan can be 

designed to ensure environmental performance, provde compliance flexibility that enhances 

cost-effectiveness and supports electric reliability, and reflect the same “common elements” that 

would apply to state plans.

 

84 In promulgating a federal plan for municipal solid waste landfills in 1999, EPA encouraged states to request 

delegated authority to administer the plan and provided specific procedures for doing so. See Federal Plan 

Requirements for Municipal Solid Waste Landfills That Commenced Construction Prior to May 30, 1991 and Have 

Not Been Modified or Reconstructed Since May 30, 1991, 64 Fed. Reg. 60689, 60698 (Nov. 8, 1999). EPA has 

approved such delegation requests for at least one state. See Approval and Promulgation of Plans for Designated 

Facilities; New Jersey; Delegation of Authority, 72 Fed. Reg. 1,668 (Jan. 16, 2007).

85 See 40 C.F.R. § 52.21(u) (providing for delegation of Prevention of Significant Deterioration permitting 

responsibilities to other agencies); 40 C.F.R. § 52.26(e) (providing for delegation of certain EPA functions relating to 

visibility protection to “any state or local air pollution control agency” or to “any Federal land manager with 

jurisdiction over the area”).